Associated Home Builders etc., Inc. v. City of Walnut Creek

• Decision Date: 26 April 1971
• Docket Number: S.F. 22787
• Citation: 484 P.2d 606,94 Cal.Rptr. 630,4 Cal.3d 633,43 A.L.R.3d 847
• Court: California Supreme Court
• Parties: , 484 P.2d 606, 2 ERC 1490, 43 A.L.R.3d 847, 1 Envtl. L. Rep. 20,223 ASSOCIATED HOME BUILDERS OF the GREATER EAST BAY, INCORPORATED, Plaintiff and Appellant, v. CITY OF WALNUT CREEK et al., Defendants and Respondents.

Page 630

94 Cal.Rptr. 630

4 Cal.3d 633, 484 P.2d 606, 2 ERC 1490, 43 A.L.R.3d 847,

1 Envtl. L. Rep. 20,223

ASSOCIATED HOME BUILDERS OF the GREATER EAST BAY, INCORPORATED, Plaintiff and Appellant, v. CITY OF WALNUT CREEK et al., Defendants and Respondents.

S.F. 22787.

Supreme Court of California,

In Bank.

April 26, 1971.

Ring, Turner & Ring, and Harold H. Turner, Walnut Creek, for plaintiff and appellant.

Daniel J. Curtin, Jr., City Atty., for defendants and respondents.

Evelle J. Younger, Atty. Gen., Sanford N. Gruskin, Asst. Atty. Gen., Denis D. Smaage, Deputy Atty. Gen., William A. Hirst, City Atty., of Pleasanton, John A. Lewis, City Atty. of Livermore, Miller, Groezinger, Pettit & Evers, San Francisco, and Robert A. Thompson as amici curiae on behalf of defendants and respondents.

MOSK, Justice.

Section 11546 of the Business and Professions Code authorizes the governing body of a city or county to require that a subdivider must, as a condition to the approval of a subdivision map, dedicate land or pay fees in lieu thereof for park or recreational purposes. In this class action for declaratory and injunctive relief, Associated Home Builders of the Greater East Bay, Incorporated (hereinafter called Associated) ¹ challenges the constitutionality of section 11546 as well as legislation passed by the City of Walnut Creek to implement the section. It is also asserted that the city's enactments do not comply with the requirements set forth in the section. The trial court found in favor of the city, and Associated appeals from the ensuing judgment.

Section 11546 of the Business and Professions Code provides:

'The governing body of a city or county may be ordinance require the dedication of land, the payment of fees in lieu thereof, or a combination of both, for park or recreational purposes as a condition to the approval of a final subdivision map, provided that:

'(a) The ordinance has been in effect for a period of 30 days prior to the filing of the tenatative map of the subdivision.

'(b) The ordinance includes definite standards for determining the proportion of a subdivision to be dedicated and the amount of any fee to be paid in lieu thereof.

'(c) The land, fees, or combination thereof are to be used only for the purpose of providing park or recreational facilities to serve the subdivision.

'(d) The legislative body has adopted a general plan containing a recreational element, and the park and recreation facilities are in accordance with definite principles and standards contained therein.

'(e) The amount and location of land to be dedicated or the fees to be paid shall bear a reasonable relationship to the use of the park and recreational facilities by the future inhabitants of the subdivision.

'(f) The city or county must specify when development of the park or recreational facilities will begin.

'(g) Only the payment of fees may be required in subdivisions containing fifty (50) parcels or less.

'The provisions of this section do not apply to industrial subdivisions.'

Section 10--1.516 of the Walnut Creek Municipal Code, which will be discussed Infra, refers to a general park and recreational plan adopted by the city. It provides that if a park or recreational facility indicated on the general plan falls within a proposed subdivision the land must be dedicated for park use by the subdivider in a ratio (set forth in a resolution) determined by the type of residence built and the number of future occupants. Pursuant to the ratio, two and one-half acres of park or recreation land must be provided for each 1,000 new residents. If, however, no park is designated on the master plan and the subdivision is within three-fourths of a mile radius of a park or a proposed park, ² or the dedication of land is not feasible, the subdivider must pay a fee equal to the value of the land which he would have been required to dedicate under the formula. ³

Section 11546 and the city's ordinance are designed to maintain and preserve open space for the recreational use of the residents of new subdivisions. The adoption of a general plan (subd. (d)) avoids the pitfall of compelling exactions from subdividers of land which may be inadequate in size or unsuitable in location or topography for the facilities necessary to serve the new residents. Under the legislative scheme, the park must be in sufficient proximity to the subdivision which contributes land to serve the future residents. Thus subdividers, providing land or its monetary equivalent, afford the means for the community to acquire a parcel of sufficient size and appropriate character, located near each subdivision which makes a contribution, to serve the general recreational needs of the new residents.

If a subdivision does not contain land designated on the master plan as a recreation area, the subdivider pays a fee which is to be used for providing park or recreational facilities to serve the subdivision. One purpose of requiring payment of a fee in lieu of dedication is to avoid penalizing the subdivider who owns land containing an area designated as park land on the master plan. It would, of course, be patently unfair and perhaps discriminatory to require such a property owner to dedicate land, while exacting no contribution from a subdivider in precisely the same position except for the fortuitous circumstance that his land does not contain an area which has been designated as park land on the plan.

Constitutionality of Section 11546

Associated's primary contention is that section 11546 violates the equal protection and due process clauses of the federal and state Constitutions in that it deprives a subdivider of his property without just compensation. It is asserted that the state is avoiding the obligation of compensation by the device of requiring the subdivider to dedicate land or pay a fee for park or recreational purposes, that such contributions are used to pay for public facilities enjoyed by all citizens of the city and only incidentally by subdivision residents, and that all taxpayers should share in the cost of these public facilities. Thus, it is asserted, the future residents of the subdivision, who will ultimately bear the burden imposed on the subdivider, will be required to pay for recreational facilities the need for which stems not from the development of any one subdivision but from the needs of the community as a whole.

In order to avoid these constitutional pitfalls, claims Associated, a dedication requirement is justified only if it can be shown that the need for additional park and recreational facilities is attributable to the increase in population stimulated by the new subdivision alone and the validity of the section may not be upheld upon the theory that all subdivisions to be built in the future will create the need for such facilities.

In Ayres v. City Council of City of Los Angeles (1949) 34 Cal.2d 31, 207 P.2d 1, we rejected similar arguments. In that case, a city imposed upon a subdivider certain conditions for the development of a residential tract, including a requirement that he dedicate a strip of land abutting a major thoroughfare bordering one side of the subdivision but from which there was no access into the subdivision. The subdivider insisted that he could be compelled to dedicate land only for streets within the subdivision to expedite the traffic flow therein and that no dedication could be required for additions to existing streets and highways. Moreover, he asserted, the city had been contemplating condemning the property for the purposes indicated in any event, the benefit to the lot owners in the tract would be relatively small compared to the benefit to the city at large, and the dedication requirement amounted, therefore, to the exercise of the power of eminent domain under the guise of subdivision map proceedings.

We held that the city was not acting in eminent domain but, rather, that a subdivider who was seeking to acquire the advantages of subdivision had the duty to comply with reasonable conditions for dedication so as to conform to the welfare of the lot owners and the general public. We held, further, that the conditions were not improper because their fulfillment would incidentally benefit the city as a whole of because future as well as immediate needs were taken into consideration and that potential as well as present population factors affecting the neighborhood could be considered in formulating the conditions imposed upon the subdivider. We do not find in Ayres support for the principle urged by Associated that a dedication requirement may be upheld only if the particular subdivision creates the need for dedication.

Even if it were not for the authority of Ayres we would have no doubt that section 11546 can be justified on the basis of a general public need for recreational facilities caused by present and future subdivisions. The elimination of open space in California is a melancholy aspect of the unprecedented population increase which has characterized out state in the last few decades. Manifestly governmental entities have the responsibility to provide park and recreation land to accommodate this human expansion despite the inexorable decrease of open space available to fulfill such need. These factors have been recognized by the recent adoption of art. XXVIII of the Constitution, which provides that it is in the best interests of the state of maintain and preserve open space lands to assure the enjoyment of natural resources and scenic beauty for the economic and social well-being of the state and its citizens. Statutes which further the underlying policy expressed in the constitutional section must be upheld whenever possible in order to effectuate its salutary purposes.

The legislative committee which recommended the enactment of section 11546 emphasized that land pressure due to increasing population has intensified the need for open space, that parks are...